Wednesday, August 24, 2005

The Breaking Point

Linda Greenhouse published this piece in the NYT on Thursday lauding Justice Stevens for his dutiful adherence to the Constitution in spite of his personal views. I think that's probably true of Kelo, less likely true of Raich, but nonsense in Roper. Past terms yield a wealth of cases where Justice Stevens has followed his "Desire," rather than what Greenhouse terms his judicial "Duty."While it seems weird to be lauding Justice Stevens of all people for his commitment to some sort of formalism, it is certainly true that every judge at least sometimes comes to conclusions with which he or she doesn't completely agree. Even Roper could be defended as not going as far as the Justice would like to go, even though the actual holding was far more Desire than Duty.

What does this tell us about the measure of "Duty" that judges like Justice Stevens employ in their decisions? While every judge begins with some commitment to the actual Constitution, every judge has a breaking point, a point at which a judge abandons an honest inquiry into what the Constitution requires him or her to hold, and finds a way to come to the "right" and "moral" conclusion.

What is most telling about Ms. Greenhouse's piece is that Justice Stevens' not adhering to his own policy preferences is somehow novel.

1 Comments:

How does Stevens read public use in the context of Kelo so as to prevent him from ruling against the xercise of eminent domain?

Public use aside (especially given comments on the blog the last few days about Ely and protection of minorities in the face of majority / legislative abuse) it's hardly as if there's no basis for judicial oversight of legislative action on this front.

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"The Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body."